Judicial Process

The beginning of the 20th century saw the emergence of the doctrine of "legal realism", which might be summarized by the statement, "Law is what judges do." This judge-centric view can be distinguished by the alternative positions that law is, or includes, what constitutional referenda, conventions, or legislatures do, or perhaps even what executive branch agents do, either in executing judicial orders, or with the acquiescence of judges or other officials. It is submitted that such positions fail to make an essential distinction between law, as a command from a lawmaker to the public, and practice, as the application of law, with due discretion, to particular cases and individuals.

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In the selections that follow, Holmes represents the "realist" school of thought, and Langdell and Beale the "formalist" school. Cardozo straddles the schools.

1.  A Summary of the Law of Contracts, C. C. Langdell. (1880) — Develops an interpretative approach to law based on private (contract) law, from the formalist standpoint.
2.   The Path of the Law, Oliver Wendell Holmes, Jr., 10 Harvard Law Review 457 (1897) — Classic statement ofthe doctrine of legal realism, that the "law" is what judges do, or can be expected to do, rather than what is logically required from first principles or historic enactment of constitutions or statutes.
3.  A Brief Survey of Equity Jurisdiction (Selections), C. C. Langdell. (1908) — Exposition from formalist standpoint.
4.   The Nature of the Judicial Process, Benjamin N. Cardozo (1921) — Discusses the debate between legal realists and constitutionalists
5.  A Treatise on the Conflict of Laws (Selections from), Joseph H. Beale (1935) — The topic is developed with a historical and theoretical perspective.